Bonum Certa Men Certa

High Courts in the United States Still Neither Grappling/Interfering With PTAB Nor Overturning Alice

In spite of massive efforts and relentless lobbying by the patent microcosm, things remain as they are

Dennis Crouch at the University of Houston Law Center Photo credit: University of Houston Law Center



Summary: In spite of unprecedented pressure from Watchtroll, Dennis Crouch (above) and other prominent elements of the patent microcosm in the United States, software patents continue to enjoy no backing from the courts while the Patent Trial and Appeal Board (PTAB) accelerates its crackdown on such patents

WHEN it comes to software patents, the US is no longer the place to be. China might be it and as the EPO mimics China -- as disturbing as that may be also in the human rights aspect -- patent law firms now openly say that it's easier to get (and/or defend) software patents in Europe than it is in the US.



"...patent law firms now openly say that it's easier to get (and/or defend) software patents in Europe than it is in the US."Over the past 3 years we have been writing a lot about Alice -- the Supreme Court (SCOTUS) decision that ended a lot of software patents in the US. For software patents to withstand a court's scrutiny (the higher, the harder) has become the exception rather than the norm. The Court of Appeals for the Federal Circuit (CAFC) has just reaffirmed this position (late on Friday). There is still no sign -- however remote -- that SCOTUS will revisit a case like Alice, but sites like Watchtroll work hard lobbying for such a thing to happen. We last gave an example of that approximately one week ago. Just escalated up to SCOTUS were a bunch of cases that involve no software patents at all; there was also Sandoz v Amgen. Managing IP wrote that "[o]n April 26, the US Supreme Court got its first chance to hear arguments over the biosimilars patent dance."

"Over the past 3 years we have been writing a lot about Alice -- the Supreme Court (SCOTUS) decision that ended a lot of software patents in the US."This case is important, but it doesn't concern us because we tend to focus on abstract patents.

Meanwhile, at CAFC, it has become "more difficult for a patentee to obtain injunctive relief even after winning its infringement lawsuit," Patently-O asserts. To quote:

The court here appears to shift this from a four-factor test to a four-element test. The result of this decision is that it becomes incrementally even more difficult for a patentee to obtain injunctive relief even after winning its infringement lawsuit and defending against validity challenges. I also expect that any analysis of the historical equitable factors (the approach suggested by eBay) will recognize that this holding is incorrect.



When it comes to CAFC, Patently-O's founder (Crouch) is still eager to slow things down. That's just regressive. He does not like PTAB, as it eliminates many bogus patents that he and the microcosm make a living from. Patently-O recently found another way to waste time of CAFC and PTAB, exploiting a misleading headline and cherry-picking of cases (the headline is factually incorrect). "In this nonprecedential decision by Judge Chen," Crouch wrote, "the Federal Circuit has partially-vacated and remanded – finding that the Board (PTAB) had failed to explain its obviousness decision."

"When it comes to CAFC, Patently-O's founder (Crouch) is still eager to slow things down."But this is the exception, not the norm. Crouch should amend his headline and 'remand'... ;-)

Meanwhile, the Supreme Court gets mentioned by Patently-O in relation to CAFC's dismissal of appeals. Parasites that can't stop throwing crappy software patents at the system (even after Alice) are wasting everybody's time and Patently-O continues to object by saying:

Certainly, if the PTAB had issued its judgment without opinion, the Federal Circuit would have immediately vacated that decision. However, the appellate court suggests that the rules of opinion writing should not be self applied.


The Federal Circuit (CAFC) has very limited resources, so dealing with thousands of appeals in an exhaustive fashion, e.g. with written determinations, would be impractical. There were some reports last year which said that CAFC had been flooded with a PTAB 'scatterback'; not everything merits an opinion, especially when utterly dumb patents are subjected to scrutiny without the profit motive of the USPTO.

"The Federal Circuit (CAFC) has very limited resources, so dealing with thousands of appeals in an exhaustive fashion, e.g. with written determinations, would be impractical."CAFC has far more important matters to look after. For instance, here is a new "report" from IAM that deals with the famous MedCo v Mylan case:

The Federal Circuit has reversed a decision that Mylan Inc’s proposed generic version of a drug infringed one of two patents owned by the Medicines Company (MedCo v Mylan, Fed Cir 2017). In doing so, it revised the district court’s claim construction to import a non-limiting example from the specification to define the pivotal term – ‘efficient mixing’ – based on its determination that the example provided the “only clear delineation” of the “scope of the term”.


In this case, what's at stake is a large lawsuit that impacts lives (generics), not just reassessment by PTAB. It makes sense for PTAB to focus on cases such as these.

"Perhaps the moral of this whole story is that we need to protect PTAB's functionality and allow CAFC to deal with oppositions quickly enough, typically reaffirming PTAB's decision to invalidate (about 80% of the time, based on last year's and this year's statistics)."Another new IAM "report", this one about the Canadian Supreme Court and Canada's CIPO, says that the Canadian "Patent Office instructs examiners to disregard Supreme Court precedent..."

So it's more or less like the USPTO, which continues to grant some software patents in spite of Alice, necessitating further scrutiny by PTAB or the courts (which typically invalidate these pretty quickly).

Perhaps the moral of this whole story is that we need to protect PTAB's functionality and allow CAFC to deal with oppositions quickly enough, typically reaffirming PTAB's decision to invalidate (about 80% of the time, based on last year's and this year's statistics).

"The demise of software patents is essential for the wellbeing of the US software industry, the businesses which actually employ programmers (except those who just prey on successful companies by suing them with software patents, e.g. IBM and Microsoft)."It's not hard to understand why Patently-O keeps meddling and interfering in these processes. Just look who's running the blog. It's not an entirely objective person (far from it, yet he called his blog "the nation's leading patent law blog"). The articles are vastly dominated by authors with law degrees and no industrial experience.

Citing the America Invents Act (AIA, which brought PTAB), here is Patently-O bemoaning CBM (covered business method) reviews. Just because patents on business methods are coming under growing scrutiny in the United States doesn't mean there's some injustice; quite the contrary. The US is finally -- if not belatedly -- cracking down on overpatenting (the same thing which happens at the EPO under Battistelli right now). Apparently the EFF has already weighed in as follows:

Two additional amicus briefs have also been filed supporting the petition. EFF argues (1) that the panel decision contorts the statutory text; and (2) ignored the consideration of deference to an agency’s interpretation of its governing statute. Clearing House Payments Company and Financial Services Roundtable joined together and argue (1) CBM institution rates are alredy down; and (2) the case allows artful claim drafting to effectively avoid CBM. (The artful drafting issue is largely moot since CBM will sunset in September 2020).

The key here is interpretation of Section 18(d)(1) of the America Invents Act that limits the scope of Covered Business Method Reviews to patents “that claim[] a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service.” Does the statute require that the claim include the financial product or service use? Note here that the argument is not based upon a statute codified in the United States Code since it is only a temporary provision that will sunset after three more years.


2020 is the year of the next US election. We certainly hope that under Trump there will be no challenge made to Alice or a case like it (or Section 101). The demise of software patents is essential for the wellbeing of the US software industry, the businesses which actually employ programmers (except those who just prey on successful companies by suing them with software patents, e.g. IBM and Microsoft).

Recent Techrights' Posts

Gemini Links 21/08/2025: The Attraction of Back Alleys, Initramfs, and BSD ISPs
Links for the day
On the Internet, Nobody Knows Microsoft and Windows Are Becoming Niche Players Until Data is Shown Correctly, Not Microsoft-Sponsored Articles in Microsoft Publishers
Microsoft controls a lot of publishers and thus it controls information
 
Links 21/08/2025: Covid Cases on the Rise, "Social Media Trolls", Russia's Attacks Intensify
Links for the day
Links 21/08/2025: Stephanie Shirley Dies and "Groklaw Domain Hijacked?"
Links for the day
Search in 2025 (Age of DDoS Attacks Under the Guise of "AI" "Innovation")
One common concern when things go "live" is that any random bot out there can execute queries, pumping up RAM and CPU usage, as happened when we used MediaWiki and WordPress
Using Slop for Images Does Not Make Your Site Look Advanced or Witty, It Just Makes Your Whole Work Look Like Presumed Plagiarism
Lazy slobs and Serial Sloppers use the guise/excuse of "AI" to plagiarise and spam the Web
Financing of the "Hey Hi" (AI) Bubble by Those Who Profit From Planetary Destruction (Global Warming)
It's about personal gain, too
Richard Stallman Will Speak in Ethereum Cypherpunk Congress
it's good to see that the FSF pays considerable respect to it founder, who is moreover invited to speak at events
(At Least) Second Wave of Mass Layoffs in Microsoft This Month
This is not the first time this month that Microsoft has mass layoffs
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, August 20, 2025
IRC logs for Wednesday, August 20, 2025
IBM Operatives Inside The Register MS and More Shady Money to Follow
The Register MS bites every banknote it can sink its teeth into
Slopwatch: Serial Sloppers and Slopfarms in Google News (e.g. Linux Journal and WebProNews)
Google plays an active role (if not deliberately then through utter neglect and carelessness) in plagiarism
Links 20/08/2025: Mass Surveillance Framed as "Artificial Intelligence" (All Old Things Reworded to Misframe Old Computer Issues), Europe Resists Capitulation to US(SR)
Links for the day
Gemini Links 20/08/2025: Trips and Permacomputing
Links for the day
Links 20/08/2025: Oracle Layoffs in India, "AI" Scammers/Profiteers Admit It's a "Bubble", Softbank-Saudi (Oil) Control Tech Companies
Links for the day
Social Control Networks Give You False Metrics to 'Addict' You To Them
Leaving social control media may seem hard, but the same is true for any other addiction
A Lot of What Happened in Twitter Was Bots, Botfarms, and Troll Farms. It's Even Worse Now (Under X.com) and People Are Noticing.
Last month we said the same was happening in YouTube
Microsoft May Have Become - at Least Partially - Like a Boiler Room Scam
Giving imaginary salaries using imaginary tokens based on imaginary value (with restrictions on conversion to cash)
In Vietnam, Microsoft's Search Engine "Market Share" Fell to Almost 0%, CocCoc More Than 5 Times Bigger
Why are people still investing in this company?
All That's Left of MSNBC (Microsoft-NBC) is Microsoft NOW
When plutocrats and large corporations (even deep in debt) buy all the communication channels
The Register MS, Paid to Promote "AI" Hype, Does "Sez" (Says) Pieces
every bubble-funded "news" site tries to make it a story about "AI"
Many Companies Are Run by Liars Who Ride Other People's Money
Or steal it
Before CoreAI There Was Builder.ai
GitHub isn't about "AI" (just a bunch of lies and storytelling for shareholders' patience)
Microsoft Windows in Croatia at New Lows
We've been keeping track of this trend for a while
Using the Best Tool/s for the Job: RSS Feeds and RSS Readers
Use RSS feeds. Reject those "modern" Web things
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, August 19, 2025
IRC logs for Tuesday, August 19, 2025
Gemini Links 20/08/2025: Neovim, XML, and Alhena 5.2.9
Links for the day
Accessibility Isn't Overrated
Making things simpler typically means better accessibility
The Register's Slopfest
Remember when The Register UK (yes, UK) had better standards?
Latest Version of Windows (Vista 11) is a Failure 4 Years After Its Fake 'Leak'
Vista 11 became more scarce this month
Improving Our Archives
Our old archives are still accessed a lot. Making them better is well worth the investment.
Things One Learns as a Litigant in Person at the UK High Court
Don't fear the official manuals
Slopwatch: Lots of Fake Articles From Fake "Linux" Sites and About "Linux"
Google says it's committed to "AI" (it means slop, not AI); that seems like an excuse to dodge accountability
Links 19/08/2025: "Eavesdropping on Phone Conversations Through Vibrations" and Air Canada in Chaos
Links for the day
Gemini Links 19/08/2025: Niche Spaces and "AI Pasta Sauce"
Links for the day
Links 19/08/2025: "NASA Is Giving Up on Climate Change Science" and "Earth's Continents Are Drying Out at an Unprecedented Rate"
Links for the day
Microsoft said “GitHub and its leadership team will continue its mission as part of Microsoft’s CoreAI organisation.” But it's just an empty shell created earlier this year.
In short, it's not too clear what Microsoft has just done except dumping GitHub - i.e. mostly a Web site that loses a ton of money (it always lost money) - into some mysterious new bucket
Phil Wyett evidence & Debian Zizian plagiarism, modern slavery tendencies
Reprinted with permission from Daniel Pocock
IBM Layoffs in MCC, or Marketing, Communications and Corporate Social Responsibility (CSR)
IBM and Microsoft inflate their share price by circular financing
In Many Countries People Move Away From Vista 11
Vista 11 has been available for download for 4 years already, but adoption has been poor
Desktops/Laptops Fall to All-Time Lows in the UK, So Why Does British Media Quote a Famous Criminal on "End of the Smartphone Era"?
mobile usage (for Web access) has never been higher, based on an Irish surveyor, statCounter
The Groklaw Web Site Has Been Hijacked by Scammers
Groklaw.net isn't a safe site to access at this time
The Register MS gets Lazy, Uses Slop
Unlike 3-D renderings or "Classic" CG, slop images aren't quite original and definitely not fair use
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 18, 2025
IRC logs for Monday, August 18, 2025
Online Safety Act Does Not Tackle the Worst (and Biggest) Culprits
if our governments are serious about tackling online harms, then they need to look closely at GAFAM and social control media giants
Chat Control (1 and 2) in the European Union Sends the Wrong Message
This is an EU law
Slopwatch: Google News and Serial Sloppers (Fake Articles About "Linux")
Calling out the culprits
Gemini Links 19/08/2025: Digital Legacy and Chat Control
Links for the day